I think that on the facts found by the District Judge this is not a case where I should commit Father Coelho, 2nd defendant to jail for contempt. There was an order of a Criminal Court ordering a lac tree to be returned to his servant. The judge no doubt rightly finds that it was his duty to see that his servant did not remove the tree in disobedience to the Civil Court's injunction but it is possible that the 2nd defendant was bona fide under the belief that he need not interfere as his servant had the permission of the Criminal Court. Though 2nd defendant is tachinically guilty of contempt the Court is not bound to commit him to jail. I am of opinion that cl. 3 to R. 2 of O. 39 of the Code of Civil Procedure applies to cases of disobedience even though the disobedience is of a prohibition to do or abstain from doing a single act. There is no reason to suppose that the legislature intended to leave such disobedience unpunished. The fact that cl. 4 refers to attachment continuing for one year and directing a sale if the disobedience or breach continues is not conclusive as such. Clause 3 of R. 2 empowers the Court either to attach his property or to commit the defaulter to prison.
In Suppi v. Kunhi Koya(1) it was held by the Full Bench of this Court that the Court can in its discretion order either arrest or attachment of property and is not bound in the first instance to attach. As pointed out by Srinivasa Aiyangar, J. (at page 913) such orders are not strictly speaking, orders enforcing the order of injunction but really orders punishing, a party for past disobedience. It should also be borne in mind that in many cases where a single act or abstention is enjoined it may be in the power of the defaulting party to purge himself of the consequences of his act by restoring the property or making adequate reparation. In such cases it is difficult to see why the Court should not attach his property in order to compel him to restore the property or make adequate reparation. I do not think there is anything in the wording of R. 2, cl. 3, to prevent the Court from committing a party to jail when he disobeys an injunction which contemplates a single act or abstention.
It has been argued that the provision as to punishment for disobedience only applies to suits of the nature contemplated by R. 2 to O. 39. I am unable to agree with this contention. Sect. 94, cl. c of the Code is general and empowers the Court to grant a temporary injunction and in case of disobedience to commit the person guilty thereof to the civil prison and order that his property be attached and sold. O. 39 must be read with Sect. 84. I would be sorry to hold that a person who wilfully disobeys an injunction of Court could escape with impunity unless there is anything in the Code which compels me to do so. For the reasons already given, I do not agree with the District Judge though I do not think the interest of justice requires that the 2nd defendant ought to be committed to jail. I think he ought to pay the costs of the proceedings in this Court and the Lower Courts.
C. K.